Policy Recommendations On Flexibilities In Copyright Laws
Policy Recommendations on Flexibilities in Copyright Laws Consumers International Asia Pacific Office Lot 5-1 Wisma WIM 7 Jalan Abang Haji Openg Taman Tun Dr Ismail 60000 Kuala Lumpur, Malaysia Tel: 60 3 77261599 Fax: 60 3 77268599 E-mail: consint@ciroap.org www.consumersinternational.org/roap
Copyright and Access to Knowledge Policy Recommendations on Flexibilities in Copyright Laws Consumers International Asia Pacific Office Kuala Lumpur 2006
Copyright and Access to Knowledge Policy Recommendations on Flexibilities in Copyright Laws The views contained in this report should not be construed as the definitive position of Consumers International or of the project donors. This report may be freely reproduced provided Consumers International is acknowledged and a copy of the reproduction is sent to Consumers International Asia Pacific Office. The full text of the report can be downloaded from: www.ciroap.org/A2K For a printed copy of the report or further information please contact Consumers International Asia Pacific Office. This project is funded by the Open Society Institute Development Foundation (OSI) and the International Development Research Centre (IDRC). ISBN 1-902391-55-1 Copyright Consumers International February 2006
Contents List of Tables 11 iv vi Acknowledgement viii Explanatory Note v List of Tables v List of Boxes v List of Appendices ix Executive Summary 1 Introduction 17 Flexibilities in International Instruments 17 A. The scope of copyright protection 1. Protect only the works required to be protected as copyright works 2. Grant copyright owners only the rights required to be granted 21 B. The duration of copyright protection 22 C. The limitations and exceptions 1. Allow parallel import 2. Make use of the compulsory licensing options for translation, reproduction and publication of copyright works 3. Make “fixation in material form” a condition for conferment of copyright 4. Incorporate a provision on the idea-expression dichotomy 5. Provide for power to deal with anti-competitive practices 6. Include a general fair use provision 7. Ensure that any anti-circumvention provision does not preclude users from relying upon limitations and exceptions to copyright that are otherwise available 8. Incorporate the maximum flexibilities available in the teaching exception 8.1 Allow the utilisation of the whole of a work for teaching 8.2 Do not limit the types and forms of utilisation for teaching 8.3 Extend the teaching exception to all classes of education, including distance education 8.4 Do not restrict the number of copies that may be made of illustrations for teaching 9. Incorporate the maximum flexibilities available in the quotations exception 9.1 Do not restrict the ways quotations can be made 9.2 Do not limit the types of work that can be quoted 9.3 Liberally interpret the requirement that work quoted must have been “lawfully made available to the public” 9.4 Do not limit the length of the quotation 9.5 Do not place limitation on the purposes of quotation 10. Exclude altogether official texts and their translations from copyright protection 11. Exclude altogether political speeches and speeches delivered in the course of legal proceedings from copyright protection 12. Ensure that protection given to compilations of data does not extend to the data itself 13. Allow the use of copyright works in broadcasts 14. Formulate “minor” reservations for educational purposes in respect of performing, recitation, broadcasting, recording and cinematographic rights 35 WIPO’s Legislative Advice 37 The United States-Singapore Free Trade Agreement 39 Conclusion and Recommendations Table 1: Flexibilities available to a developing country bound only by the Berne Convention 12 Table 2: Flexibilities available to a developing country bound by either the Berne Convention and the TRIPS Agreement, or only the TRIPS Agreement 13 Table 3: Flexibilities available to a developing country bound by the Berne Convention and the WIPO Copyright Treaty 14 Table 4: Flexibilities available to a developing country bound by the Berne Convention, the TRIPS Agreement and the WIPO Copyright Treaty 15 Table 5: Flexibilities common to all three international copyright instruments available to developing countries List of Boxes 6 Box 1: Categorisation of developing countries selected for the study 7 Box 2: The evolution of international copyright standards in respect of the works protected by copyright 8 Box 3: The evolution of international copyright standards in respect of the rights/uses controlled by copyright 28 Box 4: Minimum duration of copyright protection under the Berne Convention, the TRIPS Agreement and the WIPO Copyright Treaty List of Appendices 41 Appendix 1: Comparative Price Study 45 Appendix 2: Performance Chart 47 Appendix 3: Country Briefing Papers 48 Bhutan 49 Cambodia 50 China 51 India 52 Indonesia 53 Kazakhstan 54 Malaysia 55 Mongolia 56 57 Papua New Guinea 58 Thailand Philippines
Acknowledgement This research report presents the results of desk research and case studies (items 1 and 2). Consumers International (CI) Asia Pacific Office is implementing a project on Access to Knowledge – Copyright as a Barrier to Accessing Books, Journals and Teaching Material, funded by grants from the Open Society Institute Development Foundation (OSI) and the International Development Research Centre (IDRC). An objective of the project is to develop evidencebased policy recommendations by conducting research on the impact of copyright and other practices and policies on access to knowledge in both print and digital educational materials. The project comprises: 1. 2. Case studies of the national copyright law of 11 developing countries in the Asia Pacific region to examine to what extent flexibilities to copyright protection have been provided; 3. Research studies in Indonesia and Thailand to examine the impact of copyright and other policies/practices on access to knowledge in both print and digital educational materials; 4. National workshops in Indonesia and Thailand to develop reforms to laws and policies/practices adversely affecting access to knowledge and develop action plans; 5. 6. vi Desk research on the maximum flexibilities available in the international copyright instruments for developing countries to facilitate access to knowledge in educational materials; National advocacy campaigns in Indonesia and Thailand to raise awareness of the issues among civil society organisations and policy makers in the two countries, to develop capacity of the consumer groups in these countries to advocate for reforms in national and regional policies relating to copyright and access to knowledge, as well as to influence bilateral and multilateral negotiations to ensure a favourable regime for access to knowledge; and CI Asia Pacific Office thanks the International Advisory Committee for their comments on the draft research report and their guidance and advice on the implementation of the project. The International Advisory Committee consists of: - CI Asia Pacific Office also thanks the following persons for their valuable comments on the draft research report: - Teresa Hackett Electronic Information for Libraries [eIFL.net] Italy - Sothi Rachagan Vice President (Academic Affairs) Nilai International College Malaysia - Achal Prabhala Access to Learning Materials in Southern Africa South Africa - Peter Drahos Professor Law Program at the Research School of Social Sciences Australian National University Australia - Manon Ress Consumer Project on Technology US - Stéphane Roberge International Development Research Centre Canada - Jim Evans Emeritus Professor Auckland University New Zealand - Rishab Aiyer Ghosh Programme Leader Free/Libre and Open Source Software Maastrict Economic Research Institute on Innovation and Technology University of Maastricht The Netherlands - Jennifer Jenkins Director Centre for the Study of the Public Domain Duke University The United States - Jakkrit Kuanpoth Senior Lecturer Faculty of Law University of Wollongong Australia (formerly with the Faculty of Law, Sukhothai Thammathirat Open University, Thailand) - Special thanks goes to Dr Sothi Rachagan, former Regional Director of CI Asia Pacific Office for conceptualising this project, for the academic rigour he put into examining the various drafts and assistance with overcoming the conceptual difficulties. This report would not have seen the light of day without his wholehearted commitment. Any errors and omissions in the report are entirely our own and should not be attributed to any of the reviewers. This report is researched by Wang Min Yen, Consultant, CI Asia Pacific Office and edited by Rajeswari Kanniah, Head, CI Asia Pacific Office. Miranda Risang Ayu Law Lecturer Law Faculty Padjajaran University Indonesia An international workshop on copyright and access to knowledge. vii
Explanatory Note This report deals only with the copyright provisions relating to access to knowledge. The relevant international copyright instruments studied are the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the WIPO Copyright Treaty (WCT). It examines the copyright laws of 11 countries in the Asia Pacific region, namely Bhutan, Cambodia, China, India, Indonesia, Kazakhstan, Malaysia, Mongolia, Papua New Guinea, the Philippines and Thailand. The 11 countries are categorised according to their accession to the international copyright instruments (see Box 1). The flexibilities available to each group of countries that have acceded to the same international copyright instruments are listed in Tables 1 to 4. The categorisation of the 11 countries studied for this report (Box 1) corresponds to the sequence of the tables of flexibilities (Tables 1 to 4). For the purposes of this study, the countries currently seeking accession to the WTO are not considered as being bound by the TRIPS Agreement. These four tables are used as the basis for the Country Briefing Papers in Appendix 3 of this report. Table 5 identifies the flexibilities available to developing countries that are common to all the three international copyright instruments. Accession status therefore does not affect their ability to avail these flexibilities. The same Table 5 is used as the basis for preparing the Performance Chart in Appendix 2 of this report. The report employs a literal interpretation of the copyright legislation of these countries and does not refer to case law or other interpretational tools. This is founded on the premise that statutes should be given their plain, ordinary and literal meaning. The report is concerned with copyright, as understood in the current international regime. The related rights, namely the rights given to performers, producers of phonograms and broadcasting organisations, are outside the scope of this study. Therefore, “international copyright instruments” refers to only the Berne Convention, the TRIPS Agreement and the WCT. The report does not take into consideration the rights, obligations and flexibilities under the two international instruments that govern viii Executive Summary related rights, i.e. the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention) and the WIPO Performances and Phonograms Treaty (WPPT). The relevant provisions in the TRIPS Agreement that address the rights of performers, producers of phonograms and broadcasting organisations are also outside the scope of this report. With the exception of Indonesia, the copyright laws of the 11 countries in this report is based on the English version of the copyright legislation of the respective countries available from the website of the World Intellectual Property Organisation (WIPO) or the website of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) as at 10 March 2005. The copyright law of Indonesia used in the report is based on the copyright legislation available from the website of the Indonesian Directorate General of Intellectual Property as at 10 March 2005. The following acronyms are used in this report: Berne Convention Berne Convention for the Protection of Literary and Artistic Works CI Consumers International FTA Free Trade Agreement GDP Gross domestic product PPP Purchasing power parity Rome Convention International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations TRIPS Agreement Agreement on Trade Related Aspects of Intellectual Property Rights UNESCO United Nations Educational, Scientific and Cultural Organisation UK United Kingdom UN United Nations US United States WCT WIPO Copyright Treaty WIPO World Intellectual Property Organisation WPPT WIPO Performances and Phonograms Treaty WTO World Trade Organisation Access to knowledge is critical for developing countries that seek to educate their masses. Educational materials therefore need to be made accessible to the public. Unfortunately, the international copyright regime has developed in a manner to increasingly curtail access. A variety of efforts have been mounted to safeguard the public right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. They include the efforts of developing countries for a review of the TRIPS Agreement, the push for a development agenda in the WIPO, the civil society campaign for an Access to Knowledge Treaty and the various initiatives to promote access to copyrighted materials. This report by CI seeks to contribute to these efforts. It examines the existing international instruments on copyright to identify the provisions that may be relied on by national lawmakers to improve access to educational materials in their respective countries. The international copyright instruments examined are the Berne Convention, the TRIPS Agreement and the WCT. The report also examines the copyright laws of 11 developing countries in the Asia Pacific region to ascertain the extent to which the national lawmakers have availed themselves of the flexibilities presented in these instruments. The 11 countries are Bhutan, Cambodia, China, India, Indonesia, Kazakhstan, Malaysia, Mongolia, Papua New Guinea, the Philippines and Thailand. The flexibilities that exist in the three instruments appear in three forms: A. The scope of copyright protection B. The duration of copyright protection C. The limitations and exceptions A. The scope of copyright protection The international copyright instruments have, over the years, progressively expanded the scope of copyright protection, namely the works that are protected by copyright and the rights that are granted to copyright owners. The scope of copyright protection specified in the international instruments is however only the “minimum standard” and countries are therefore free to widen the scope beyond their obligations under the international instruments which they are parties to. Developing countries are net importers of copyright materials and it is in their interest to maintain the scope of copyright protection at its minimum. In addition, the international copyright instruments specify the “bundle of rights” that should be granted to copyright owners. Unfortunately, all 11 countries studied have either expanded the scope beyond what they are required to do or given copyright owners more rights than necessary under the relevant international instruments. B. The duration of copyright protection Copyright is given for only a fixed period of time. This feature in the copyright system seeks to balance the interest of the copyright owner with the public right to access. National lawmakers should ensure that they do not grant copyright protection beyond the minimum duration required under the international copyright instruments. Ten out of the 11 countries studied (Bhutan, Cambodia, China, India, Indonesia, Kazakhstan, Malaysia, Mongolia, Papua New Guinea and Thailand) have extended the duration of copyright protection for some or all work forms beyond the minimum duration required by their treaty obligations. C. The limitations and exceptions National lawmakers should ensure that they use to the widest extent possible all limitations and exceptions to copyright available to them under the relevant international instruments for educational purposes. 1. Parallel import The issue of parallel import was deliberately excluded from the international copyright instruments, and national lawmakers are free to frame the law so as to allow parallel import of copyright materials from places where such materials are available at lower prices. Regrettably, none of the 11 countries studied explicitly permit parallel import of copyright works. 2. Compulsory licensing for translation, reproduction and publication Developing countries can make use of the two compulsory licensing options in the Appendix to the Berne Convention. The first is a compulsory licensing regime that allows translation for the purpose of teaching, scholarship or research and the publication of such translation. The second ix
Executive Summary relates to reproduction for use in connection with systematic instructional activities and the publication of such reproduction. The provisions in the Appendix are useful because they expressly permit the “publication” of works translated or reproduced under compulsory licences. Pursuant to the Appendix to the Berne Convention, a developing country that intends to avail itself of either or both of the options under the Appendix has to make a declaration to that effect. Out of the 11 countries studied, only Mongolia and the Philippines have made the relevant declarations to avail themselves of both the options provided in the Appendix. Thailand has only availed itself of the one relating to translation. The other eight countries have not made any such declaration. 3. Fixation in material form The Berne Convention expressly allows national lawmakers to impose a requirement for works to be “fixed in some material form” before they become qualified for copyright protection. Such a requirement will permit countries to provide copyright protection only to materials that appear in some physical form. Member states should also give a narrow meaning to the term “material form” so as to, for example, exclude digital materials from copyright protection. Unfortunately, 10 out of the 11 countries studied have not specified “fixation in material form” as a condition for conferment of copyright. Only Malaysia has done so. 4. Idea-expression dichotomy Copyright protects not the idea, but the expression of the idea. This principle is often referred to as the “idea-expression dichotomy”. This principle serves the important public policy of preserving and enriching the public domain and ensuring that new expressions such as electronic databases do not “lock up” ideas. China, India and Indonesia have not incorporated a provision excluding ideas from copyright protection in their copyright legislation. However, eight of the 11 countries examined (Bhutan, Cambodia, Kazakhstan, Malaysia, Mongolia, Papua New Guinea, the Philippines and Thailand) have done so. 5. Anti-competitive practices Article 40 of the TRIPS Agreement provides that national legislation may adopt measures to control licensing conditions that may constitute an abuse of intellectual property rights and have an adverse impact on competition in the relevant market. However, out of the 11 countries examined, only Indonesia and Thailand have included provisions in their national copyright legislation to deal with possible anti-competitive practices brought about by the exercise of copyright. 6. The three-step test The Berne Convention, the TRIPS Agreement and the WCT provide that limitations or exceptions must be confined to certain special cases, must not conflict with a normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the right holder. This is commonly known as the “three-step test”. The Berne Convention applied the three-step test to only the reproduction rights. The TRIPS Agreement however widened the application of the test to all exclusive rights granted by the Berne Convention and the TRIPS Agreement. Therefore, a country that is not bound by the TRIPS Agreement should confine the application of the three-step test to only the reproduction rights. Two out of the 11 countries studied (Bhutan and Kazakhstan) are not parties to the TRIPS Agreement. Yet Kazakhstan has applied the three-step test to all the rights instead of only the reproduction rights. 7. Anti-circumvention provision The WCT requires member states to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological protection measures that are used by authors in connection with the exercise of their rights”. However, there are times when certain limitations and exceptions would have allowed users to access and make use of certain work but for the technological protection measures. As such, national lawmakers must not incorporate such anticircumvention provision without expressly linking the provision to copyright infringement, or without the simultaneous inclusion of corresponding limitations or exceptions. Six out of the 11 countries studied (Bhutan, Cambodia, China, Indonesia, Malaysia and Papua New Guinea) have included an anticircumvention provision in their national copyright legislation. Indeed, of these only Indonesia is a party to the WCT. All six countries also do not link anticircumvention provision to copyright infringement. 8. Teaching exception 8.1 Allow the use of the whole of a work The Berne Convention does not prohibit the utilisation of the whole of a work for the purpose of teaching, so long as it is justified by the purpose and is compatible with fair practice. However, only three of the 11 countries studied (Indonesia, Malaysia and the Philippines) allow such a possibility. 8.2 Types and forms of utilisation Although the Berne Convention does not limit the types and forms of utilisation for teaching, nine out of the 11 countries (Bhutan, Cambodia, China, India, Kazakhstan, Malaysia, Mongolia, Papua New Guinea and Thailand) limit the teaching exception to only certain categories of rights, most commonly the reproduction right. 8.3 Distance education The Berne Convention does not confine the word “teaching” to only classroom instruction. Yet, only Indonesia and the Philippines have clearly provided that the teaching exception covers distance education. The teaching exception in the other nine countries does not cover distance education. 8.4 Number of copies of illustrations The teaching exception in the Berne Convention does not restrict the number of copies of publications or sound or visual recordings that can be made for the purpose of illustrations for teaching. However, five out of the 11 countries studied, (China, India, Indonesia, Kazakhstan and Papua New Guinea) expressly restrict the number of copies of these materials that can be made for teaching purposes. 9. Quotations exception 9.1 The ways they can be made The Berne Convention allows the “making” of quotations that impinge on not only the reproduction right of the copyright owners, but also other rights such as the right of communication to the public. Four out of the 11 countries examined (Bhutan, India, Mongolia and Papua New Guinea) confine the right of making quotations to only the reproduction rights. 9.2 Types of work that can be quoted The Berne Convention places no limitation on the types of work that can be quoted. Therefore besides literary works, artistic works such as paintings can be quoted too. Cambodia and India have placed limitations on the types of work that can be quoted. 9.3 Work quoted lawfully made available to the public Although the work quoted must have been “lawfully made available to the public”, this is wider than the concept of “published work”. Six of the 11 countries (Bhutan, China, India, Malaysia, Papua New Guinea and the Philippines) have imposed some form of conditions allowing only “published” work to be quoted. 9.4 Length of quotations National lawmakers have been given the freedom to determine, subject to the general criteria of purpose and fair use, the size of the quotation. Six of the 11 countries studied (Bhutan, Cambodia, Kazakhstan, Mongolia, Papua New Guinea and Thailand) allow quotations of only “part of a work”, or “a short part of” a work, or “extracts” of a work. 9.5 Purposes of quotation The Berne Convention does not place any limitation on the purpose for which quotations can be made. Despite this, five of the 11 countries (China, India, Indonesia, Kazakhstan and Mongolia) permit quotations to be made for only certain purposes. 10. Official texts and their translations National lawmakers should avail of the freedom given to them by the Berne Convention and exclude altogether official texts and their translations from copyright protection. Two out of the 11 countries studied (Indonesia and Malaysia) have not clearly excluded official translations of official texts from copyright protection. 11. Political speeches and speeches delivered in the course of legal proceedings The Berne Convention allows national lawmakers to exclude political speeches and speeches delivered in the course of legal proceedings from copyright protection. Mongolia is the only country out of the 11 studied that has excluded such works from copyright protection. xi
12. Data in compilations of data The TRIPS Agreement and the WCT expressly provide that the protection given to “compilations of data or other material” should not extend to “the data or material itself”. India is the only country out of the 11 studied that has not taken advantage of this flexibility. 13. Use of works in broadcasts National lawmakers are free to determine the conditions under which the copyright owner can exercise his right of broadcasting. None of the 11 countries studied have included in their law exceptions that allow the use of all copyright works in broadcasts for educational purposes. 14. “Minor” reservations for educational purposes The exceptions in respect of performance, broadcasting, recitation, recording and cinematographic rights are implied in the Berne Convention. National lawmakers should thus include these “minor” reservations that allow, for instance, the broadcasting or public recitation of copyright works in school for educational purpose. Six out of the 11 countries studied (Bhutan, Cambodia, Indonesia, Kazakhstan, Mongolia and Papua New Guinea) did not provide for any such “minor” reservation. The remaining five countries have provided “minor” reservations in respect of some but not all of the rights. upwards the copyright protection prescribed in the Berne Convention, the TRIPS Agreement and the WCT. In addition to the above, CI also conducted a comparative price survey of book prices in Indonesia, Thailand and the US. The Comparative Price Study (Appendix 1) shows that when the price of a book is considered in the context of a country’s GDP per capita (i.e. the average individual income), these books become prohibitively expensive to the average Indonesian and Thai. When a student in Indonesia is made to pay US 81.70 for Goodman & Gilman’s The Pharmacological Basis of Therapeutics, it is equivalent to a student in the US paying US 3,170.97 for the same book in GDP per capita terms and US 913.07 when compared using the GDP per capita calculated at purchasing power parity (PPP) exchange rate. An assessment was made of the WIPO Draft Laws on Copyright and Related Rights. The Draft Laws do not address many of the flexibilities identified above. WIPO is clearly not providing proper legislative advice to developing countries so as to enable them to take full advantage of all the flexibilities available to them. An assessment was also made of the US-Singapore Free Trade Agreement (FTA) to study how copyright protection is addressed. The US-Singapore FTA commits the contracting party to accede to the WCT; includes the right to prohibit all reproductions, including temporary reproduction in electronic form; increases the duration of protection to life of author plus 70 years; and makes mandatory legal protection and legal remedies against the circumvention of technological protection measures. In this manner, the FTA has ratcheted xii xiii
Introduction Education for Development All societies need knowledge to develop. Education is the key to development of the individual and consequently communities and nations. It is the only path for developing countries to lift themselves out of poverty. With a substantial percentage of the population living on less than US 2 a day in many countries in the Asia Pacific, access to education is a critical issue in the development agenda. Education can improve the quality of all aspects of life. In fact, education underpins virtually all the Millennium Development Goals that have been pledged by the member states of the United Nations. Eradication of poverty, reduction of child mortality, combating HIV/AIDS, etc., can all be achieved through education. A UNESCO study indicates that four years of primary education raises the output of a farmer in Uganda by seven per cent. The child of a Zambian mother with primary education has a 25 per cent better chance of survival than a child of a mother with no education. Further, educated girls have significantly lower risk of HIV infection. In spite of all the pledges of governments and development organisations, a substantial proportion of the population in developing countries still do not have access to education. As many
A. The scope of copyright protection 1. Protect only the works required to be protected as copyright works 2. Grant copyright owners only the rights required to be granted List of Boxes B. The duration of copyright protection C. The limitations and exceptions 1. Allow parallel import 2.
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